Rarely does the Supreme Court have the opportunity to rectify major wrongs and mend egregious infringements coming from an out-of-control federal government: wrongs so outrageous that they threaten the very basis of society, so extreme that they risk emasculating and eviscerating the legal basis of an ordered existence, so far-reaching that they neutralize major amendments contained in the Bill of Rights.
On Monday, April 28, the Court had that opportunity, and they whiffed.
Without comment, the Court passed on examining Hedges v. Obama, a lawsuit that challenged the very basis of the National Defense Authorization Act (NDAA), especially the language that gave the president the power to incarcerate any American citizen without a warrant, without a trial, without access to an attorney, without telling him why he was arrested, resulting potentially in him spending the rest of his life behind bars.
When the NDAA was reauthorized with more funds and broader language in January 2012, Brian Trautman saw exactly what was at stake:
This pernicious law poses one of the greatest threats to civil liberties in our nation’s history. Under Section 1021 of the NDAA, foreign nationals who are alleged to have committed or merely “suspected” of sympathizing with or providing any level of support to groups the U.S. designates as terrorist organization or an affiliate or associated force may be imprisoned without charge or trial “until the end of hostilities.”
The law affirms the executive branch’s authority granted under the 2001 Authorization for Use of Military Force (AUMF) and broadens the definition and scope of “covered persons.”
But because the “war on terror” is a war on a tactic, not on a state, it has no parameters or timetable. Consequently, this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability – potentially even demonstrators and protesters exercising their First Amendment rights.
Within days of passage, Christopher Hedges, a Pulitzer-Prize-winning journalist formerly with the New York Times, filed suit against the president and his henchmen along with members of the Congress responsible for pushing through the funding and the expansion.
This must have been a moment of clarity for the liberal journalist who suddenly realized that it is possible to have too much government, especially when that government threatens him personally and his livelihood directly. Hedges has had many conversations with people close to various terrorist organizations, using them as sources of information and background for his stories, articles, and analyses. All of a sudden he no doubt realized that, with this additional power, the president just might zero in on him!
Hedges joined with whistleblower Daniel Ellsberg and some others equally exposed under the newly revised and strengthened NDAA in his lawsuit, which was heard by U.S. District Court Judge Katherine M. Forrest. Forrest couldn’t have done a better job in concluding in May 2012 that Hedges et al were exactly right: their rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments were being excised out of existence, leaving them exposed to the ravages of a totalitarian government now unrestrained by the law.
She considered the most evil part of the NDAA – Section 1021 – to be
Constitutionally infirm, violating both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution….
There is a strong public interest in protecting rights guaranteed by the First Amendment … [as well as] a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected…
With Judge Forrester, it even got personal:
The court is mindful of the extraordinary importance of the government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security….
Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this court’s responsibility to safeguard the rights it has sworn to uphold.
Forrester issued a permanent injunction against the Obama administration’s using that offending section until it was fixed by Congress.
This apparently was just too much for Obama et al, and they moved heaven and earth to find an up line court more amenable to their agenda. They did: The 2nd Circuit Court of Appeals. That court didn’t even listen to any of the constitutional arguments that Forrester laid out. They tossed the case, and her ruling, because the plaintiffs didn’t have standing to bring the suit in the first place: they hadn’t proven that they had been damaged by the new law!
Besides, the court’s brief look at the offending language gave them just enough plausibility to deny its threat to the plaintiffs’ freedoms. Here’s the language from the court. It’ll take some careful attention to see how they use the English language to justify their rejecting Hedge’s claim and Forrester’s decision:
Section 1021(e) provides that Section 1021 just does not speak – one way or the other – to the government’s authority to detain citizens, lawful resident aliens, or any other persons captured or arrested in the United States….
We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s AUMF [Authorization for Use of Military Force Against Terrorists, passed after 9/11] authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners – a detention authority that Section 1021 concludes was granted by the original AUMF.
But with respect to [American] citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.
Got that? Since nowhere in the offending section does the phrase “American citizen” even appear then it must mean that they are exempted. Because it says nothing about American citizens the new law must not apply to them.
Here’s the specific language from NDAA Section 2012 allowing the president to use United States armed forces to detain indefinitely
[any] person who was a part of or substantially supports al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
One can see immediately why Hedges was so concerned, and also how deliberately blind the 2nd Circuit Court was in its decision. How is “substantially supports” defined? What about “associated forces” or “engaged in” or how is “hostilities” defined? The law covers “any person who has a committed a belligerent act” or has “directly supported” hostilities. Why, a six-year-old with a set of car keys could drive the family SUV right through the middle of that without blinking, hitting every pedestrian in the neighborhood along the way.
The Rutherford Institute presented a friend of the court brief to the Supremes in support of their taking Hedges and dismantling it, but when it was learned that the Court was going to take a pass, they issued this:
In refusing to hear a legal challenge to the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA), the United States Supreme Court has affirmed that the President and the U.S. military can arrest and indefinitely detain individuals, including American citizens.
By denying without comment a petition for review in Hedges v. Obama, the high court … let stand a lower court ruling empowering the President to use “all necessary and appropriate force” to indefinitely detain persons associated with or “suspected” of aiding terrorist organizations.
Rutherford president John Whitehead added:
What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. (emphasis added)
According to government guidelines for identifying domestic extremists – a word used interchangeably with terrorists – [the law] applies to anyone exercising their First Amendment rights in order to criticize the government. (emphasis added)
Hedges himself couldn’t be reached for a comment, but earlier he expressed what this means for freedom:
If Section 1021 stands, it will mean, as [Judge] Forrest pointed out in her 112-page opinion, that whole categories of Americans – and here you can assume dissidents and activists – will be subject to seizure by the military and indefinite and secret detention.
That includes, presumably, anyone reading this article, including its author. By failing to take on Hedges v. Obama and beginning the process of pushing back against leviathan, the Supremes whiffed, and left Americans naked and exposed to the machinations of the totalitarians.
Brian Trautman: Why the NDAA is Unconstitutional